Driving Under the Influence
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    San Diego DUI Defense Attorney

    Driving Under the Influence (DUI) is one of the most common criminal charges issued in California. In 2017, over 123,000 people were arrested on suspicion of DUI in California. This constitutes more than 10% of the DUI arrests nationally. If you have been arrested for DUI in San Diego, California you are not alone, but you will face some steep penalties if convicted.

    Most people assume that fighting a DUI is impossible and that the evidence against them cannot be refuted. This is not always true. An experienced DUI defense attorney can help you navigate the complexities of the criminal justice system and cast doubt on the evidence that the government might have against you.

    Arresting officers must follow strict procedures during a DUI arrest, and breathalyzer results are often unreliable. If a mistake was made during, before, or after your arrest, you may have legal grounds to file pre-trial motions (for example, to suppress evidence) that could result in your case being dismissed. If your case went to trial, it is always the government’s burden to prove their case beyond a reasonable doubt. They need unanimity from a jury of 12 in order to be found guilty. An experienced criminal defense lawyer will assist in poking holes in the District Attorney’s case that could very well lead to a hung jury, or better yet, an acquittal.

    If you have been arrested for DUI, you should consult a skilled San Diego DUI Lawyer. Having experienced representation on your side during the legal process can help you avoid common pitfalls and excessive penalties. Call the Law Offices of David Silldorf today to discuss your case.

    We will help guide you through the process and provide counsel as to the best course of action in defending against your DUI charges. We have represented defendants charged with BACs below .08% as well as BACs up to .39% with an accident involving property damage and/or injuries.

    DUI Charges in California

    There are two main tracks that a DUI case follows after arrest. The first track runs with the Department of Motor Vehicles (DMV). The second track runs with the California Superior Court. The DMV Office of Driver Safety will start an administrative process related solely to your CA driver’s license and ability to drive.

    The Superior Court process almost exclusively deals with the criminal charges attached to alleged DUI conduct. It should be noted that while the DMV exclusively deals with licensing, a Court does have the ability to punish a person criminally, as well as suspend a person’s driving privilege, depending on the conduct and any prior criminal history that may exist, including DUIs.

    You have 10 days to contact the DMV Office of Driver Safety after arrest. Failure to do so will result in the DMV suspending your license. The length of the suspension depends on several factors, including any prior DUIs and other negative driving history that resulted in points on your DMV record. When your attorney contacts the Office of Driver Safety, they need to request 2 things: (1) a stay of the suspension of your driving privileges, and (2) discovery.

    Once you or your attorney confirm an administrative hearing with the DMV, your driving privileges remain intact unless and until the DMV hearing officer finds that your driving privileges are suspended. These findings must be in writing to the driver, stating the justification and evidence in support of their decision, as well as the new date the suspension goes into effect.

    A person who has been arrested on suspicion of DUI should contact an attorney as quickly as possible to make sure the DMV hearing is calendared, collect your discovery early, and start working up your case and possible defenses.

    Administration License Suspension Program (Admin Per Se)

    The DMV will not wait for a driver suspected of drunk driving to be found guilty by the Court. Under the Administration License Suspension Program (Admin Per Se), drivers will have their license automatically suspended if they are arrested for a DUI. The DMV will suspend or revoke a driver’s license if a person registers a BAC above the legal limit or refuses to take a BAC test.

    As discussed above, any sanctions imposed by the DMV under APS are independent of court-imposed penalties including jail time, fines, and driver’s license suspension or revocation. However, driver’s license suspensions can overlap and be effective concurrently between the DMV and the Courts. It’s important to highlight that a refusal to provide a breath, urine, or blood sample WILL result in an automatic 1-year suspension of your driving privileges.

    Following a DUI arrest, the arresting officer will usually confiscate a person’s driver’s license and issue them a temporary license that will expire in 30 days. Even if this does not occur, the DMV will send a notification of the suspension by mail. As noted above, you only have 10 days to notify the DMV of your request for a hearing with a DMV hearing officer. If this deadline is missed, the DMV will suspend your license for a time period dependent on the following factors:

    • First Offense DUI 4-month suspension
    • Second Offense DUI (within a 10 year period) 1-year suspension
    • Third Offense DUI (within a 10 year period) 2-year revocation
    • Fourth Offense DUI (within a 10 year period) 3-year revocation
    • First Offense Refusing a Chemical Test 1-year suspension
    • Second Offense Refusing a Chemical Test (within a 10 year period) 2-year suspension

    These suspension periods are based on charges of Driving Under the Influence as outlined in California Vehicle Code §23152 for people above the age of 21 in circumstances where no injuries resulted from the offense and a person does not have a prior felony conviction. If a defendant has a prior Driving Under the Influence conviction that resulted in bodily harm, the penalties are significantly more severe.

    Driving Under the Influence - California Vehicle Code § 23152

    Most people whose Blood Alcohol Content is tested at or above .08% will be charged under California Vehicle Code section 23152(a) which states that it is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. They will also be charged under section 23152(b) which states that it is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. These are both misdemeanors that are almost always charged together.

    Many of our clients ask us what the difference is? If you have a .08% BAC or greater, are you not by definition, driving under the influence? The simple answer is: yes. But it doesn’t always work the other way around. In other words, if you have less than a .08% BAC, you cannot be found guilty of 23152(b). BUT, you could still be theoretically driving under the influence of alcohol.

    The District Attorney commonly charges defendants throughout San Diego County of DUI under 23152(a) and don’t include the “(b) count”, because the BAC is .05 or .06%. If the government can prove that a person’s driving ability was impaired through observations of police officers, video evidence, and poor performance on field sobriety tests, it is entirely possible for them to obtain a conviction at trial for DUI without the 23152(b) count under the vehicle code.

    Driving Under the Influence of Drugs - Vehicle Code § 23152(f)

    If a person is not found to be under the influence of alcohol but is otherwise intoxicated, they can be charged with California Vehicle Code section 23152(f). 23152(f) states that it is unlawful for a person who is under the influence of any drug to drive a vehicle. This law encompasses both illegal drugs and prescription drugs that can incapacitate a driver.

    Drivers who are suspected of Driving Under the Influence of Drugs (DUID) will be required to take a blood test to determine their toxicology. Penalties for violating section 23152(f) are similar to those for standard driving under the influence charges.

    Driving Under the Influence of Drugs - Vehicle Code § 23152(f)

    Drivers who register a BAC above 0.20% can be charged with a separate DUI offense under California Vehicle Code section 23538(b)(2). Because their Blood Alcohol Content is over double the legal limit, these drivers are more at risk of injuring others so they face harsher penalties. This enhances the penalties for a DUI conviction and requires the defendant to participate in additional alcohol education programs, have an extended period of probation, more community service hours, and possibly face jail time.

    Standard Penalties for DUI in California

    1st Offense 2nd Offense 3rd Offense 4+ Offenses
    Min. Max. Min. Max. Min. Max. Min. Max.
    Court Fines $1,800 $3,600 $1,800 $4,000 $1,800 $18,000 $1,800 $18,000
    Jail Time 48 Hours 6 Months 96 Hours 1 Year 120 Days 1 Year 180 Days 36 Months
    License Suspension 30 Days 6 Months 1 Year 2 Years 3 Years 4 Years
    Education Program 3 Months 18 Months 30 Months 30 Months 30 Months

    Aggravating Circumstances That Enhance DUI Charges

    Crimes often have aggravating and mitigating factors that determine how severe they will be considered by the court. These factors will help determine whether a crime is charged as a misdemeanor or a felony and what penalties are pursued by the prosecution. The following are some of the most common aggravating factors that increase the severity of a DUI charge:

    *A Watson Murder is a circumstance in which a person is arrested for a DUI that caused a fatality when they had a prior DUI conviction wherein they were given a “Watson advisement”. A Watson advisement is a formal statement that a person signs that states that they understand that driving under the influence can injure and kill people and result in being charged with murder.

    Having heard and acknowledged this warning means that a person has the intention to commit a violent act if they drink and drive in the future. This establishes a legal precedent of malice, where a person demonstrates a reckless disregard for human life and can be liable for murder. Watson Murder carries similar penalties to second-degree murder. A person could face 15 years to life in prison if convicted of DUI Murder.

    Aggravating Circumstances That Enhance DUI Charges

    Most DUIs are charged as misdemeanors in California. In certain circumstances, however, a person may be charged with felony Driving Under the Influence. DUIs are charged as felonies when they result in death or serious bodily injury, when a person has been convicted of three prior DUIs within a 10-year period, and when a person has been convicted for a prior felony DUI.

    Death or Serious Injury

    If a person causes death or serious injury to another human being while driving under the influence they may be charged with a Felony. California Vehicle Code Section 23513 can be applied if a driver was intoxicated and also violated another law that caused bodily injury. This often occurs when a person is driving negligently while intoxicated and runs a stop sign or exceeds the speed limit. Not all DUIs involving injury are charged as felonies. The prosecutor will make a determination based on the circumstances surrounding the case as well as the defendant’s criminal history.

    Having a skilled defense attorney on your side can help persuade a prosecutor that the facts do not meet the criteria for a felony charge to issue. An experienced lawyer can also help convince the court that the crime was actually a lesser offense, or depending on the facts, that either you weren’t driving at the time of the original detention.

    Vehicular Manslaughter while Intoxicated

    Vehicular Manslaughter while Intoxicated is the least severe charge a person can receive for Driving Under the Influence that results in Death. California Penal Code Section 191.5(b) outlines the violation as the unlawful killing of a human being without malice aforethought and without gross negligence.

    Here, a person must be found to be without malice (wanton disregard for human life) and without gross negligence (engaging in an act that is likely to result in injury or death). These are complex legal ideas, but a skilled defense attorney will be able to establish that a defendant had a momentary lapse of judgment instead of a blatant disregard for others that an “ordinary person” would recognize as being dangerous.

    Vehicular Manslaughter while Intoxicated can be charged as either a misdemeanor or felony, depending on the circumstances. Misdemeanors are punished by fines, community service, alcohol counseling, and up to a year in jail. Felony charges can lead to up to 4 years in prison and a $10,000 fine.

    Gross Vehicular Manslaughter While Intoxicated

    Gross Vehicular Manslaughter while Intoxicated is similar to Vehicular Manslaughter while Intoxicated in that it occurs when a driver causes an accident in which another person is killed while under the influence of alcohol or drugs. Penal Code 191.5 (a) describes the violation as a circumstance in which a person who is driving while intoxicated, violates another law (running a red light, hopping a curb), and displays gross negligence which results in the death of another person. Gross Vehicular Manslaughter while Intoxicated is a felony and can be penalized by up to ten years in the state prison and a $10,000 fine.

    Over 3 DUIs Within 10 Years

    If a person has been convicted of DUI three or more times within the last ten years, their next DUI can be charged as a felony. Prior offenses can include:

    • A California Driving Under the Influence Conviction
    • An Expunged DUI Conviction
    • A “Wet Reckless” Conviction*
    • An Out-Of-State DUI Conviction that meets California DUI requirements

    *A Wet Reckless charge is a lesser-included offense than a DUI. As part of a plea agreement, a prosecutor may agree to a reduced charge of Wet Reckless if the defendant’s BAC was at or around the legal limit of .08%. This charge is not a DUI and is similar to a misdemeanor reckless driving offense. It basically means that the driver was engaged in unsafe driving and that alcohol was involved. However, there is no automatic driver’s license suspension. Many of the criminal penalties that attach, however, are the same as a standard first-time DUI.

    A fourth DUI arrest can be further complicated by the lingering penalties from previous DUI convictions. A person with three prior DUI convictions may be driving on a restricted license, a suspended license, or be on probation. When facing a fourth DUI, it is critically important to retain the services of a DUI attorney. Challenging this charge can help a person avoid the severe penalties that the State will try to impose and give the defendant a chance at avoiding a felony DUI charge.

    Over 3 DUIs Within 10 Years

    California Vehicle Code section 23550.5 states that If a person is charged with any DUI (misdemeanor or otherwise) and they have a prior felony DUI, they will be charged with a felony DUI in their current case. Someone convicted of a felony DUI without any additional aggravating circumstances or enhancements could serve up to three years in a California state prison and have their driver’s license suspended for a period of up to four years.

    Defending Against a DUI Charge

    Defending against DUI charges begins immediately after a person is arrested. From the time of arrest, the clock starts ticking on when a person’s Administrative DMV hearing must be requested and noticed. This hearing will determine whether or not your license will be suspended administratively through the DMV. As discussed above, this action is entirely separate from the criminal court proceedings. A person arrested under suspicion of drunk driving has just 10 days to request a hearing. This is a crucial, but often overlooked component of a DUI defense.

    A DMV hearing is not a trial, but it is a chance to establish the groundwork for a successful DUI defense. At a DMV hearing, you have the option to call the arresting officer as a witness. The officer may not remember all the details of the arrest or contradict their initial report. Their testimony will be given under oath, under penalty of perjury, and recorded. (All DMV licensing hearings are audio recorded.) Anything the arresting officer says at the DMV hearing can be used against them in future negotiations or criminal court proceedings.

    At this hearing, a skilled attorney will argue that the officer did not have probable cause to arrest the defendant, that the defendant was not driving, or that they were not intoxicated. It also gives the lawyer an opportunity to cross-examine the officer to see how they perform under the stress of cross-examination by a lawyer. These are golden opportunities to get a cop locked in so that their story can’t later change dramatically when they speak with a prosecutor in preparation for the criminal court proceedings.

    Even if the DMV decides to suspend the defendant’s license, there is still ample opportunity to fight DUI charges. Breathalyzers are prone to error and may not have been calibrated properly. These results can also be impacted by consuming different types of food and drinks. Medical conditions like acid reflux and heartburn can also cause inaccurate or high readings. If a blood test was used to determine the defendant’s level of intoxication, a lawyer can send the sample to an independent laboratory for an additional test to challenge the original results.

    Another common defense in the DUI context is a “rising defense.” Here, the argument is that at the time of driving, the defendant was not DUI. If, for example, the defendant drank 5 shots of tequila immediately before getting behind the wheel, and was detained and arrested just moments later, your attorney needs to consider a rising defense. In this context, this means that the alcohol you just drank had not yet made its way through your stomach lining and in your bloodstream to then travel back up to your brain and impair your ability to drive safely. So while it may be true that by the time the breath or blood test is given, your BAC is well above the legal limit, it does not mean that you were DUI at the moment of your arrest.

    Your DUI lawyer will attend court proceedings on your behalf. If the case is a misdemeanor, your lawyer can have 977 authority under the Penal Code to appear on your behalf without you being present. This is a real benefit to many people who have work, childcare, or other personal issues that would otherwise create a conflict with making their court appearances. Court is also stressful and time-consuming.  Having a lawyer appear for you is a real benefit.

    Many DUI cases may involve several court dates that take place over many months. An attorney will collect evidence, file motions, and negotiate with the prosecutor during this period in an effort to reduce the charges, mitigate punishment, or have the case dismissed absent having to go to trial.

    Choosing a San Diego DUI Attorney

    DUIs are complicated cases and are not nearly as straightforward as many think. If you have been arrested for a DUI, especially one involving injury or death, you need to contact a criminal defense lawyer who understands the legal complexities and understands the terrain. You always want a lawyer with experience and a reputation of aggressively advocating for their clients. The Law Offices of David Silldorf have a proven track record of successful case results defending against serious criminal DUI charges.

    A DUI conviction can potentially affect you for the rest of your life. There are unforeseen consequences of suffering a misdemeanor conviction that many people don’t know or are simply unaware of. A common example is that a misdemeanor conviction categorically bars most people from entering Canada for personal or business reasons.

    Having a criminal record may also affect future employment opportunities, and will likely show up on criminal background searches, including livescan and DOJ databases. That is why it’s important to hire a lawyer who knows the law and the court system.

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      David Silldorf, Criminal Defense Attorney in San Diego

      The Law Offices of David Silldorf have experience working with local San Diego judges and prosecutors. We will carefully evaluate your case, and help you choose the best course of action to obtain the best possible outcome. Our team works tirelessly to ensure that you won’t face unnecessary or extreme punishments.

      If you or someone you know has been recently arrested for a DUI, don’t hesitate to call us today for a free consultation.

      Case Results
      noun Car Accident 1876877

      People v. a Minor

      [Petition No. JCM242307]

      Felony DUI causing an accident with serious bodily injury.


      noun car crash 1876883

      People v. an Individual


      DUI with accident/injury, and child endangerment.


      noun Accident 1876879

      People v. an Individual

      Client was being investigated for felony hit-and-run charges.



      We’ll fight for you so you get the results you deserve.

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